Wernimont v. International Harvester Corp.

• Decision Date: 26 May 1981
• Docket Number: No. 2-64035,2-64035
• Citation: 309 N.W.2d 137
• Parties: Victor J. WERNIMONT and Florence A. Wernimont, Plaintiffs-Appellants, v. INTERNATIONAL HARVESTOR CORP., and Midwestern Truck Sales, Co., a/k/a Midwestern Truck Sales, Inc., Defendants-Appellees.
• Court: Iowa Court of Appeals

Page 137

309 N.W.2d 137

Victor J. WERNIMONT and Florence A. Wernimont, Plaintiffs-Appellants, v. INTERNATIONAL HARVESTOR CORP., and Midwestern Truck Sales, Co., a/k/a Midwestern Truck Sales, Inc., Defendants-Appellees.

No. 2-64035.

Court of Appeals of Iowa.

May 26, 1981.

Robert Kohorst and Fred Louis, Jr., of Louis, Moore, Kohorst & Louis, Harlan, for plaintiffs-appellants.

Emmet Tinley and Peter J. Peters of Stuart, Tinley, Peters, Thorn, Smits & Sens, Council Bluffs, for defendants-appellees.

Heard by OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.

JOHNSON, Judge.

Plaintiffs, Victor J. and Florence A. Wernimont, appeal from judgment entered following a directed jury verdict for defendants, International Harvester Corp. and Midwestern Truck Sales, Inc., in an action to recover for personal injuries. ¹ They claim that the trial court erred: 1) in finding insufficient evidence to warrant submission of the theories of negligence, strict liability and breach of implied warranties of merchantability and fitness for a particular use to the jury; 2) in imposing pretrial sanctions preventing plaintiffs from introducing expert testimony because of their failure to answer certain interrogatories propounded by defendants; 3) in excluding from evidence plaintiff's diary describing his injuries; and 4) in restricting plaintiffs' direct examination of one of defendant's engineers. We affirm.

On January 10, 1975, plaintiff was driving a cab-over truck tractor manufactured by defendant International Harvestor and retailed by defendant Midwestern Truck Sales. He was driving on Interstate 29 (South) near Council Bluffs when he lost control of the vehicle because of blizzard and icy conditions. The truck broke through a steel barricade on the left side of the divided highway and crashed into the support beam of an overpass bridge used by traffic on Interstate 29 (North). The front of the cab caved in and the steering wheel pinned plaintiff to the seat, crushing his left side.

Plaintiffs filed their petition on January 10, 1977, seeking damages on four alternative theories: negligence, strict liability in tort and implied warranties of merchantability and fitness for a particular use. They alleged that defendants were negligent in five specific areas: 1) design and manufacture of the cab without adequate safety provisions for the driver; 2) design and manufacture of the cab without adequate structural strength; 3) failure to locate the steering column in a nonhazardous position; 4) failure to allow adequate room in the cab for the driver; and 5) failure to provide warnings regarding these allegedly dangerous conditions. Defendants answered plaintiffs' allegations with general denials and also alleged affirmative defenses of contributory negligence, assumption of risk, misuse, and act of God.

On January 28, 1977, defendants filed interrogatories which, among other things, asked plaintiffs to list the names of any experts they expected to call to testify on their behalf (interrogatory no. 32) and to specify with more particularity plaintiffs' theories of liability (interrogatories nos. 19-24). Due to plaintiffs' failure to respond to the interrogatories, defendants filed on June 29, 1977, a motion to compel discovery. On August 30, 1977, trial court ordered plaintiffs to answer within twenty days. Plaintiffs served answers on September 2, but did not answer interrogatories nos. 19-24 or 32. Plaintiffs' continuing failure to answer these interrogatories prompted a series of motions and resistances by both sides.

Following a pretrial conference on April 2, 1979, trial court issued an order requiring plaintiffs to provide by no later than April 12 a list of experts whose testimony they intended to elicit at trial. Plaintiffs did not file their response until April 16th. Defendants then filed a motion for an order imposing sanctions which trial court granted on June 20th. Pursuant to the order, plaintiffs' April 16th amendment to interrogatories was stricken and plaintiffs were "prohibited from the calling as an expert witness Patrick Miller or any other expert witness with respect to the issues of liability."

Trial to a jury began on July 24, 1979. At the close of plaintiffs' case, defendants moved for a directed verdict. Trial court sustained the motion on July 26th and entered judgment for defendants the following day. Plaintiffs' appeal followed.

I. Scope of Review. Since this appeal is at law, our review is on assigned error only. Iowa R.App.P. 4.

II. Propriety of Motion for Directed Verdict. Plaintiffs first argue that trial court erred in granting defendants' motion for a directed verdict because there is sufficient evidence in the record to justify submission of plaintiffs' various theories of liability to the jury. We note initially that such questions as negligence and proximate cause generally are to be decided by the jury; it is only in the exceptional cases that they may be decided as a matter of law. Iowa R.App.P. 14(f)(10). In determining the propriety of a motion for a directed verdict, we must view the evidence in the light most favorable to the party against whom the motion is made (here, plaintiffs). Iowa R.App.P. 14(f)(2).

We first must dispose of defendants' claim that the directed verdict was appropriate since plaintiffs presented no expert testimony in support of their claim of liability.

A. Plaintiffs' Burden in Establishing a Prima Facie Case. We begin our analysis by examining plaintiffs' burden in establishing a prima facie case. To prevail on a claim of strict liability in tort in Iowa, a plaintiff must establish the following elements (1) manufacture of a product by defendant; (2) the product was in a defective condition; (3) the defective condition was unreasonably dangerous to the user or consumer when used in a reasonably foreseeable use; (4) the manufacturer was engaged in the business of manufacturing such a product; (5) said product was expected to and did reach the user or consumer without substantial change in condition, i. e. the defect existed at the time of the sale; (6) said defect was the proximate cause of personal injuries or property damage suffered by the user or consumer; (7) damages suffered by the user or consumer.

Osborn (v. Massey-Ferguson, Inc.), 290 N.W.2d 893 at 901 (Iowa 1980); see also Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516, 520 (Iowa Ct.App.1977).

The concept of strict liability also can be applied in the commercial context. Section 554.2314, The Code, establishes an implied warranty of merchantability for goods if the seller is a merchant as to such goods. One criterion for merchantability is that the goods "are fit for the ordinary purposes for which such goods are used." Section 554.2314(2)(c). One scholar has noted that this requirement of merchantability as found in the Uniform Commercial Code imposes a strict liability standard on the merchant seller. "If he sells goods that are not merchantable, he is liable for breach of the implied warranty of merchantability regardless of whether he either knew or should have known of the deficiency in the goods." Phillips, "A Synopsis of the Developing Law of Products Liability," 28 Drake Law Review 317, 330 (1978-79).

Strict liability also may arise from a manufacturer's or supplier's breach of duty to warn consumers of the dangerous nature of goods sold. In West v. Broderick & Bascom Rope Company, 197 N.W.2d 202, 209 (Iowa 1972), the court quoted with approval from Restatement (Second) of Torts § 388 (1965):

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

See also Cooley v. Quick Supply Co., 221 N.W.2d 763, 770-72 (Iowa 1974).

When a design defect is alleged, plaintiff must show that the product is unreasonably dangerous because defendant failed to use reasonable care in its design. Chown v. USM Corp., 297 N.W.2d 218, 220 (Iowa 1980). "Unreasonably dangerous" refers to "the consumer's reasonable expectations regarding the product's characteristics." Eickelberg v. Deere & Co., 276 N.W.2d 442, 444 (Iowa 1979).

Another theory of design defect which has been accepted by various jurisdictions is the doctrine of crashworthiness, or liability imposed on manufacturers for defects which only enhance injuries rather than cause them. ² Authorities which have carefully considered the issue have concluded that crashworthy or second collision cases, impugning product design, require, in addition to proof of product defect, three additional elements. These are: (1) proof of an alternative safer design, practicable under the circumstances; (2) what injuries would have resulted had the alternative safer design been used; and (3) the extent of enhanced injuries attributable to the defective design. E. g., Stonehocker v. General Motors Corp., 587 F.2d 151, 158 (4th Cir. 1978); Huddell v. Levin, 537 F.2d 726, 737-38 (3rd Cir. 1976); Wilson v. Piper Aircraft Corp., 282 Or. 61, 65, 577 P.2d 1322, 1326-27 (1978).

B. Requirement of Expert Testimony. Having discussed the applicable theories of recovery, we next must decide whether expert testimony was necessary to plaintiffs' proof. Initially, we note that Iowa law does not appear to require plaintiff to present expert testimony in all cases in order to...